Why Palestine Should Seek Justice at the International Criminal Court

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Israel and Palestine Researcher, Middle East and North Africa Division

For almost a year, since obtaining upgraded status at the UN, the Palestinian leadership in Ramallah has had a chance to open the door to justice for serious international crimes committed on Palestinian territory.

They could seize this chance to deter future abuses tomorrow by giving the International Criminal Court (ICC) jurisdiction.

Palestine first lodged a declaration seeking ICC jurisdiction in late January 2009, after the devastating 22-day Gaza conflict that started the month before. In April 2012 the then-ICC prosecutor stopped considering Palestine's declaration, stating that he couldn't decide whether Palestine was a "state," a necessary condition for jurisdiction.

But in November 2012, the UN General Assembly resolved the matter by voting to admit Palestine as a "non-member observer state." Soon after the UN upgrade, the current prosecutor, Fatou Bensouda, said that the "ball is now in the court of Palestine" to seek the court's jurisdiction.

Palestinian rights groups urged her to act on the 2009 declaration, but on Nov. 25, 2013, her office published a report that closed that door.

The prosecutor has placed the onus on Palestinian leaders to actively pursue the court's jurisdiction anew, by either formally becoming a member of the ICC or filing a new declaration recognizing the court's jurisdiction. Palestine could seek jurisdiction starting from any date since 2002 when the court opened its doors.

Why isn't Palestine playing ball in The Hague? Those responsible for rocket launches from Gaza targeting Israeli population centers could be held criminally responsible at the ICC, but that should not deter the Palestinian leadership in Ramallah from seeking the court’s jurisdiction, since it has stated that it is against such attacks.

The main reason, current and former Palestinian officials say, is that Israel has threatened unspecified retaliation if it seeks the court’s jurisdiction, and the US has reinforced the threat. As a former Palestinian legal adviser told me, "The US said to us clearly, conveying Israel’s position, 'Don't touch it.'" US Secretary of State John Kerry said during his Senate confirmation hearings that the US was "very, very strongly against" any "effort to take Israel for instance … to the ICC."

Other countries that, as ICC members, should be pushing for universal ratification of the court's statute – including the UK, France, and most recently recently Canada – have instead also pressured Palestine not to seek justice through the ICC.

The Israeli and US threats cannot be taken lightly, given Israel's control over Palestinians' lives – at checkpoints, border crossings, and during arrest raids in their homes – and the Palestinian economy’s heavy reliance on foreign donations, including from the US.

But the consequences should be weighed against the alternative – impunity for crimes fueling further abuses. The ICC's jurisdiction would cover serious crimes under international law on Palestinian territory by all parties, such as widespread torture, or indiscriminate attacks on civilians whether committed by Palestinian armed groups or the Israeli military.

Notably, the ICC's statute categorizes the "direct or indirect" transfer of civilians by an occupying power into occupied territory – like the Israeli government’s transfer of Jewish citizens into the settlements – as a war crime. Another war crime under the statute is the "forcible transfer" of protected people in an occupied territory off their lands, such as by demolishing their homes and preventing them from returning.

Since Prime Minister Benjamin Netanyahu of Israel came to power in 2009, construction has begun on 8,575 settlement homes. Israeli demolitions during the same period left more than 4,000 Palestinians homeless. Both trends are accelerating. There were 1,708 settlement housing starts in the first half of 2013, up by 70 percent over the same period in 2012, and demolitions have left 933 Palestinians homeless so far this year, up from 886 in all of 2012.

Palestinian leaders have said they would seek ICC jurisdiction at the present time if – and apparently only if – Israel builds settlements in the so-called E1 area just east of Jerusalem, which many analysts say would effectively cut the West Bank in half.

But settlement-building is not only relevant to a future two-state solution: it takes a terrible, daily toll on people's lives. Israel has granted settlements jurisdiction over 39 percent of the entire West Bank, making those areas off-limits to Palestinians who own land there or traditionally had access for farming and raising livestock. Meanwhile, as an Israeli rights group recently reported, the area used for settlement agriculture has increased by 35 percent since 1997, to 9,300 hectares. Some Palestinian farmers have no recourse but to lease land from settlers, who got it from Israel for free.

Israel, the US, and other countries have justified their calls for Palestine not to use its new UN status to pursue ICC jurisdiction by claiming it would undermine peace negotiations. But during 20 years of on-and-off negotiations, impunity for rights abuses and laws-of-war violations has fueled animosity and made negotiators' jobs more difficult. The absence of credible accountability mechanisms has hardly proven an advantage in bringing the conflict to an end.

Potential ICC involvement could change the political calculus of those responsible for such violations by sending a clear message that the commission of grave crimes will lead to serious consequences.

Palestinian leaders are under pressure, but they have not publicly pushed back and made the case that seeking the ICC's jurisdiction would serve justice and perhaps assist peace talks. They have not explained why they feel unable even to actively seek the ICC's jurisdiction.

If the ICC has jurisdiction, the prosecutor can open an investigation of her own accord, but that seems highly unlikely. If Palestine became a member of the court, it's far more probable that it would need to take a second step and ask the prosecutor to investigate. But taking the first step of seeking jurisdiction could still ratchet up pressure against impunity for serious crimes.

It's time for the Palestinian leadership to inform its public about how it is keeping the accountability ball in play.

Bill Van Esveld is a senior Middle East researcher at Human Rights Watch.